TW, R (on behalf of) v Essex County Council

A local authority’s assessment under section 17(10)(a) of the Children Act 1989 is subject to judicial review on conventional public-law grounds. The court must not substitute its own view of the severity of the child’s circumstances. A young person staying with family members under informal licences may properly be assessed as not homeless and not a child in need, where the authority has made adequate inquiries and maintained an open mind. Section 20 has primacy where its statutory conditions are met, but accommodation procured for a different cohort is not thereby accommodation provided under section 20. A local authority does not unlawfully fetter its discretion by contracting to provide services for specified groups, provided that it retains adequate accommodation to discharge its statutory duties. The discretion to treat a person as a former relevant child arises only where the earlier assessment was flawed.

The claimant, aged 17, moved between his father’s and brother’s homes, sleeping on a sofa in each. Essex County Council assessed him as not being a child in need and supported him to obtain accommodation through the Essex Young People’s Partnership, later known as Essex NEST, with additional early-help services.

He challenged the assessment, the conclusion that he had rejected accommodation under section 20 of the Children Act 1989, the policy that EYPP/NEST accommodation was unavailable under section 20, and the refusal to treat him as a former relevant child. The court also considered delay and standing.

1. Grounds 1 and 2. The assessment was lawful. Section 17(10)(a) asks whether, without local-authority services, the child is unlikely to achieve or maintain a reasonable standard of health or development. The question was for the authority, subject to irrationality review. The authority made full inquiries, considered the claimant’s family arrangements and support needs, and was entitled to conclude that the statutory threshold was not met. The court would not substitute its own assessment of the seriousness of the circumstances.
2. The Housing Act 1996 concepts of homelessness and threatened homelessness inform the assessment but do not determine whether a child is in need under the 1989 Act. The claimant had informal licences to occupy his father’s and brother’s homes. It was open to the authority to conclude that he was not homeless and that there was no immediate threat requiring section 20 accommodation.
3. The claimant had genuinely indicated that he did not want looked-after-child status. The explanation of section 20 was imperfect and did not comply fully with the National Guidance, but the deficiency was immaterial because the claimant was not eligible for section 20 accommodation in any event.
4. Ground 3. EYPP/NEST accommodation was not provided under section 20. Although the authority controlled referrals and standards, the procurement documents showed that the scheme was intended for young people outside the looked-after-child system. Section 22C(5) did not require BBH to be treated as an available or appropriate section 20 placement. The authority was entitled to procure provision for specified cohorts, provided that other accommodation remained available to discharge section 20 duties. There was no unlawful fettering of discretion.
5. Ground 4 and delay. Following GE (Eritrea) and HP, the discretion to treat a person as a former relevant child arises only following a flawed assessment. The authority was therefore entitled not to exercise that discretion. The court noted tension between continuing-breach authorities and the later, more nuanced approach, but followed BC and would in any event have extended time.
6. Permission was granted on all grounds, but the claim failed and was dismissed.

First-instance judicial review. Permission was granted on all grounds at the rolled-up hearing, but the substantive claim was dismissed.